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February 17, 2005

Another impressive Sixth Circuit Booker episode

I joked here that the Sixth Circuit's Booker work has a soap-opera quality, but today's installment of the saga at least suggests the judges in the circuit are all starting to work from basically the same script. Today's thoughtful opinion comes from Judge Karen Nelson Moore in US v. McDaniel, 03-1940 (6th Cir. Feb. 17, 2005) (available here), and in the end it remands on Booker grounds for resentencing while suggesting some developing harmony over how the circuit is dealing with plain error.

The Sixth Circuit's work in McDaniel, like its work yesterday in Barnett, merits a close read for anyone working through plain error issues. In addition, the McDaniel opinion has a lot of interesting dicta about the handling of pipeline issues, the application of Blakely/Booker to restitution issues, and a number of other matters.

UPDATE: Appellate Law & Practice picks up the soap opera theme with a great post entitled As the Sixth Circuit Booker World Turns. This post includes additional commentary on McDaniel as well as a brief discussion of the Sixth Circuit's unpublished disposition in US v. Fusse, No. 02-6112 (6th Cir, Feb. 17, 2005) (available here), which itself briefly deals with plain error on the way to granting a Booker remand.

Comments

A Quibble:

Judge Moore's decision in McDaniel does not show that "harmony" is developing in the Sixth Circuit's plain-error cases. In fact, Judge Moore notes a split in prior panel opinions, but relies on Oliver and Davis and not on Bruce because Davis and Oliver occurred first. Only an en banc decision can resolve the panel split that exists between Davis/Oliver/McDaniel and Bruce.

Posted by: mark | Feb 17, 2005 11:54:27 AM

Let me offer a quibble to (or is it with?) the quibble. Professor Berman's implicit point I think is that the more 6th Circuit cases there are that recognize that Davis & Oliver control Bruce because Bruce came late to the table, the harder it is for future 6th Circuit panels to nonetheless follow Bruce rather than the earlier cases. Thus even without an en banc to resolve the split, given the 6th circuit's (very reasonable) rule that the earlier opinion controls, the split will diminish in importance, in essence resolving itself, as future panels are less able to ignore the "earlier opinion controls" rule.

I think it is important to re-emphasize that this "self-resolving" aspect of the 6th Circuit split is a function entirely of that "earlier opinion controls" rule. Note that in a circuit like the 8th, where later panels have a _choice_ of which conflicting earlier panel decision to follow, an intra-circuit split on plain error would _not_ necessarily tend to resolve itself. In this latter case, of course, an en banc is absolutely necessary to cure the split. Which is perhaps why the 8th Circuit has decided to hold all plain error cases pending the march en banc hearing on the issue.

Posted by: Jason | Feb 17, 2005 5:45:58 PM

Point Taken -- To A Point

If all future Sixth Circuit panels do not rely on Bruce when denying plain-error review, then Jason's comment is entirely on the mark. Only time will tell, however, whether future panels will consistently reject Bruce (and the other panel decisions currently following it) in favor of Davis/Oliver/McDaniel.

I wouldn't bet my house (or even a good bottle of wine) on it.

Regardless of how this turns out, the Sixth Circuit's Prior Panel Rule is preferable (IMHO) to the Eighth Circuit's.

Posted by: Mark | Feb 18, 2005 10:11:30 AM

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